Federal Agencies Update Legal Process to Tackle Ephemeral Messaging in Modern Workplace

Federal Trade Commission© DoraDalton / Getty Images Signature / Canva

WASHINGTON, D.C. — The Federal Trade Commission (FTC) and Justice Department have announced updates to their standard preservation letters and specifications. These changes are designed to ensure that companies continue to comply with legal obligations to preserve documents during government investigations and litigation.

Companies are adopting new technologies at a rapid pace, and tools like Slack, Microsoft Teams, and Signal have become commonplace in modern business communication. While these platforms offer benefits such as real-time collaboration and increased efficiency, they also present challenges for legal processes. Some of these tools allow or automatically enable the immediate and irreversible destruction of communications and documents.

“Companies and individuals have a legal responsibility to preserve documents when involved in government investigations or litigation,” said FTC Bureau of Competition Director Henry Liu. “Today’s update reinforces that this preservation responsibility applies to new methods of collaboration and information sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities.”

The updated language in the FTC and Justice Department’s standard preservation letters and specifications aims to clarify this obligation and eliminate any ambiguity. The intent is to prevent companies or individuals from claiming ignorance of their duty to retain documents, even those created or communicated through ephemeral messaging applications.

“These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages,” said Manish Kumar, Deputy Assistant Attorney General of the Justice Department’s Antitrust Division. “The Antitrust Division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction of justice charges.”

While documents created through the use of these technologies have always been covered by FTC and DOJ document requests, compliance has been inconsistent. The agencies’ move to update their standards is a clear signal of their commitment to enforcing these requirements.

Companies that fail to preserve documents covered by an FTC investigation or enforcement action could face serious consequences. The Commission has successfully moved for civil spoliation sanctions in the past and may refer cases to criminal prosecutors through the Bureau of Competition’s Criminal Liaison Unit in appropriate circumstances.

These updates underscore the ongoing evolution of the legal landscape in response to technological advancements. As businesses continue to embrace digital tools and methods of communication, they must also adapt their practices to ensure compliance with legal obligations. The message from the FTC and Justice Department is clear: ephemeral does not mean exempt from the law.

For the latest news on everything happening in Chester County and the surrounding area, be sure to follow MyChesCo on Google News and Microsoft Start.